R v Biber

The Agreed facts

1. The following narrative of facts is taken from the Agreed Facts.

Introduction

1. Mr Biber is an Australian citizen of Turkish descent who was born on 15 August 1992. In July 2013, when he was 20 years and 11 months old, he travelled with other young men from Australia to Syria via Turkey with the intention of engaging in hostile activities in Syria. The group, which was supported by Hamdi Alqudsi, intended to join Mohamed Ali Baryalei, a fellow Australian. At that time Mr Baryalei was a combatant in Syria with the insurgent group Ahrar al-Sham (AAS) and had connections with the insurgent group Jabhat al-Nusra (JAN). JAN was listed as a terrorist organisation by the Australian Government on 28 June 2013 under the Criminal Code (Terrorist Organisation - Jabhat al-Nusra) Regulation 2013 (Cth).

Mr Baryalei's departure

1. Mr Baryalei left Australia on QANTAS airlines flight QF21 on 10 April 2013. He travelled to Syria via Turkey. To date, Mr Baryalei has not returned to Australia.

Mr Alqudsi's list

1. On 13 June 2013, Mr Alqudsi received a text message from an associate, Wassim Fayad, which listed the names and phone numbers of 13 men, who were referred to as "the brothers that I have God willing". The list of names included "Abu Abdul Malik", which was the nickname for Mr Biber, together with one of his mobile telephone numbers. The list also included the nicknames for Muhammad Abdul-Karim Musleh, an Australian citizen of Palestinian descent; Tyler Casey, an Australian citizen who had previously lived in the United States of America; and Caner Temel who, like Mr Biber, was an Australian citizen of Turkish descent.
2. On 17 June 2013, Mr Alqudsi spoke to Mr Temel on the telephone and told him that he had good news in regards to "tourism" for Mr Temel and Mr Biber.
3. On 19 June 2013, Mr Biber applied for an Australian passport. He nominated Mr Temel as his guarantor.

Discussions between Mr Alqudsi and Mr Baryalei about what was occurring in Syria

1. Between 22 June 2013 and 30 June 2013, prior to Mr Biber's departure from Australia, Mr Alqudsi spoke on the telephone to Mr Baryalei in Syria on at least six occasions. During these conversations, they discussed the armed hostilities in Syria.
2. On 22 June 2013, Mr Alqudsi and Mr Baryalei discussed Mr Baryalei's participation in armed combat in Syria, including an attempt to take a large stronghold. Mr Baryalei reported on an enemy sniper "wiping everyone out" and killing "five brothers". He described his ears ringing from the noise of a passing bullet. He referred to a fellow Australian fighter named Shwan setting up roadside traps for tanks. He told Mr Alqudsi that a battle Commander had died in front of him. He also reported that his own unit had "taken out" two or three tanks, which caused "the Nusiris . . . torture after torture from the repeated explosions". The reference to "Nusiris" was a reference to a sect of Shiite Muslims, also known as Alawites, to which the Assad ruling family belongs. Also on 22 June 2013, Mr Baryalei told Mr Alqudsi that he knew a number of "big boys" in JAN and that he was going to shift over there and talk to some of them.
3. On 25 June 2013, Mr Alqudsi told Mr Baryalei of his arrangements for up to eight young men, including Messrs Biber, Casey, Temel and Musleh, to leave Australia within about a week to join Mr Baryalei in Syria. Mr Alqudsi also reported that he had directed these men that, when they arrived in Syria, Mr Baryalei would be their Commander. They spoke of arrangements for the four men to travel to Hatay, a province in southern Turkey on the border with Syria, and then to Bab al-Hawa, a border crossing between Turkey and Syria, where AAS had headquarters. AAS, also known as Free People of Greater Syria, is a coalition of multiple Islamist units that coalesced into a single brigade to fight against the Assad Government during the Syrian Civil War. Mr Baryalei told Mr Alqudsi that he was aligned with the Night Arrows Battalion. He also told him of his intentions of becoming a "shaheed". A shaheed is another word for a martyr and means a person who suffers or dies in the process of carrying out a religious commandment or jihad. Mr Baryalei told Mr Alqudsi that he would arrange for someone else to meet "the boys" if he was not available when they arrived.
4. On 30 June 2013 Mr Baryalei told Mr Alqudsi that "the group" (with which he was associated) had split into two groups, one being JAN and the other Islamic State. Islamic State was listed as a terrorist organisation by the Australian Government on 12 July 2014, under the Criminal Code (Terrorist Organisation-Islamic State) Regulation 2014 (Cth). For completeness I note that the Crown confirmed that AAS has never been listed as a terrorist organisation.

Pre-departure arrangements

1. On 27 June 2013, Mr Biber rang Mr Alqudsi twice. Mr Biber reported that he had just left the agent where he discussed the availability of flights and prices. Mr Alqudsi told Mr Biber to stick to the "shura" and pass this information on to Mr Casey and Mr Musleh. The word "shura" is an Arabic word for "consultation". Under sharia law, the obligation of a ruler is to consult with followers when making a decision. In this context, the direction that Mr Biber stick to the shura was a direction to abide by the decisions made as to how to proceed, which were made after consultation with the group in Sydney.
2. Later on 27 June 2013, Mr Musleh told Mr Alqudsi that he, Mr Biber and Mr Temel were "registered", that is, booked, to travel on Monday (1 July) and that Mr Casey would travel on Saturday (29 June).
3. On 29 June 2013, Mr Casey left Australia on Singapore Airlines flight SQ242.

The route of travel taken by Mr Biber

1. Mr Biber, Mr Musleh and Mr Temel left Australia on 1 July 2013 on Singapore Airlines flight SQ242. They travelled to Turkey where they joined Mr Casey. The four men then travelled to Bab al-Hawa, where they were picked up by members of AAS whom Mr Baryalei had arranged to meet them. They maintained telephone contact with both Mr Alqudsi in Sydney and Mr Baryalei in Syria. In such conversations Mr Musleh generally spoke on behalf of the group as Mr Alqudsi had appointed him "travelling commander" until they arrived in Syria, at which time, as referred to above, Mr Baryalei would become their "commander".

The telephone conversations between the young men and Mr Alqudsi en route

1. In telephone conversations with Mr Alqudsi on 2 and 3 July 2013, which took place as the young men made their way from Turkey to Syria, Mr Alqudsi instructed them to fly to Hatay, stay in a hotel overnight and travel to Bab al-Hawa where Mr Baryalei would be waiting for them. Mr Alqudsi told them to "stick with the shura" and to keep him informed of their progress. He advised them to change money into Turkish, Syrian and American currency. The young men told Mr Alqudsi that when they arrived at Hatay airport no one was there to meet them, notwithstanding a plan for them to be met which Mr Musleh had made with Mr Baryalei.
2. Mr Alqudsi was told that the four men were with Abu Yahya, who was to take them to Mr Baryalei. Abu Yahya was with AAS, which had taken control of Bab al-Hawa. Mr Alqudsi was told that the young men would be smuggled into Syria from there. When Mr Musleh told Mr Alqudsi that he was concerned about Abu Yahya, Mr Alqudsi explained that he was with AAS. Mr Alqudsi told Mr Musleh that not everyone understands "the reality of jihad in the path of Allah".
3. Mr Musleh reported to Mr Alqudsi that Mr Biber, Mr Temel and Mr Casey were not afraid and said that "they look beautiful and ready".
4. Mr Musleh reported to Mr Alqudsi that an Alawite had drawn the attention of the Turkish police to their group of four. He told Mr Alqudsi that the police had searched them and then released them, believing them to be tourists. However, in that process they had lost Abu Yahya. Mr Alqudsi advised Mr Musleh to get Mr Biber, who spoke Turkish, to find a taxi to take them out of the area. Mr Alqudsi instructed them to stay overnight in a hotel in a different location pending further instructions. Mr Musleh reported to Mr Alqudsi that he had spoken to Mr Baryalei, who told them to go to a hotel and wait for a phone call. Mr Musleh told Mr Alqudsi that, in order to reduce suspicion, he and Mr Biber, who spoke Turkish, would go to exchange their money into USD before returning to the hotel and heading straight to the border.
5. On 4 July 2013, Mr Biber rang Mr Alqudsi and told him that they had returned to their hotel after exchanging money. Mr Biber asked if Mr Alqudsi's wife could provide support to his wife (Mehlike Canpolat) in Australia. Mr Biber explained that his family in Australia was devastated that he had gone and that his parents wanted to visit him in Istanbul to find out the truth. As Mr Biber described it, his family was "pretty much having a funeral" for him. Soon afterwards, Mr Alqudsi exchanged text messages with Mr Biber's wife, who told him she was with Mr Biber's family and that they had made a report to police and family overseas in order to "catch" the group somehow. Later the same day, Mr Alqudsi told Mr Musleh that Mr Biber's parents had called the police both in Australia and Turkey. Mr Alqudsi advised the group to change locations as police were searching for them. Mr Alqudsi also told them that Mr Biber's family "want[s] him to be locked up for 25 years."

Crossing the border from Turkey to Syria

1. At about 9:42pm on 4 July 2013, Mr Musleh told Mr Alqudsi that the group was then on the Turkish side of the border waiting with the "brothers" for another "brother" to pick them up. Mr Alqudsi asked if they were to be picked up by Mr Baryalei. Mr Musleh replied that another "brother" would take them through to Mr Baryalei on the Syrian side of the border in about an hour or an hour and a half. Mr Musleh told Mr Alqudsi that they were "feeling good, the boys are very happy ... [it was] one of the best days" of their lives. Following this conversation, on the evening of 4 July 2013, the four men crossed from Turkey into Syria where they joined Mr Baryalei.

The return of Mr Musleh

1. On 9 July 2013, Mr Alqudsi told Mr Fayad that "one of the boys" was going to return the following day and that it must be kept a secret. Mr Alqudsi said, "We don't want kids. This is serious. One of the brothers, after he saw what he saw, he went in and in and in and in, now he is coming back. He was speaking to me over the phone yesterday, he was crying over the phone. Like kids."
2. On 11 July 2013, a week after he had first crossed the border into Syria, Mr Musleh returned to Sydney International Airport. The other three men, Mr Biber, Mr Temel and Mr Casey, remained in Syria.

Further communications with Mr Alqudsi

1. On 23 July 2013, Mr Alqudsi spoke with Fatima Ismail, Mr Temel's wife, who expressed concern for her husband's safety. Mr Alqudsi asked her how she would react if she received news that her husband had become a martyr. He reassured her that the first brothers he had sent were still alive. Mr Alqudsi asked her to delete all messages with, and photos of, Mr Temel from her phone in case police searched her phone. Mr Alqudsi asked her to pass on the same message to Mr Biber's wife. He said, "this is your jihad and her jihad as well, not just your husbands'".
2. On 8 August 2013, Mr Baryalei told Mr Alqudsi that he was proposing to join Islamic State and that he was "taking everyone with me" and would pledge his allegiance in the next two or three days. Mr Baryalei said he was going to be given headquarters for himself and "the boys".

The photograph of nine men in black with assault weapons

1. On 14 August 2013, Mr Alqudsi expressed concern to an unknown male about a photograph of his "boys" that was being circulated. He said that its circulation had to stop quickly or "it would ruin all of us".
2. On 22 August 2013, Mr Alqudsi spoke to Mr Baryalei and Mr Biber who were together in Syria. Mr Biber discussed his plan to bring his wife to Syria, saying that many "muhajireen" had brought their wives there. The word "muhajireen" means "immigrant" and refers to those who partake in "hijrah", the movement of Muslims from a land of unbelievers, or where there is polytheism, to a land of Islam. Mr Biber also asked Mr Alqudsi "which photo was floating around", to which Mr Alqudsi replied, "the one that I received of all of youse. The group". Mr Biber asked if there were weapons, to which Mr Alqudsi responded "yeah of course there is. The one with the truck, all of youse."
3. An image which matched this description was seized from Mr Alqudsi's home. It was also found on the phone belonging to Mr Temel's sister, Yonca Temel. The photograph depicted nine men, including Mr Biber, all of whom were dressed in black and were holding assault weapons. They were posing around the rear of a utility vehicle and displaying a flag used by insurgent Islamic forces in Syria in 2013. Mr Biber was standing inside the tray of the utility vehicle. The photograph was reproduced in the Agreed Facts.

Communications between Mr Biber in Syria and Mr Alqudsi in Sydney

1. Between September and December 2013, Mr Biber stayed in contact with Mr Alqudsi (who was in Sydney) via instant messaging applications including WhatsApp. In the course of those conversations Mr Biber discussed the availability and cost of AK47 and M16 assault weapons and reported to Mr Alqudsi on the arrival and activities of other foreign fighters, including Australians, in Syria.
2. On 25 September 2013 Mr Biber told Mr Alqudsi about having a dream about dying as a martyr and seeing his happiness in paradise, when he was raised by three virgins. Mr Biber reported that when he awoke he told Mr Baryalei. In response, Mr Alqudsi praised God and commented that it was a beautiful dream. He added that Mr Biber would get his martyrdom very soon.
3. On 16 October 2013, Mr Biber sent photographs to Mr Alqudsi of Nasim Elbahsa, another Australian who was with Mr Biber. At least one photograph depicted Mr Biber raising his right index finger and wearing military-style fatigues. A raised right index finger is a sign of "tawhid", or the oneness of God. It is announced at the start of the affirmation of Islamic faith, "There is no God but God", which is otherwise known as the shahada. This affirmation of monotheism later became an integral part of Islamic State symbology.

Mr Biber's family members

1. On 29 November 2013 Mr Biber's wife, who was pregnant with Mr Biber's child, travelled with Mr Biber's mother, Sunay Biber, from Australia to Turkey.

Mr Alqudsi's arrest in Sydney and the execution of search warrants

1. On 3 December 2013, Mr Alqudsi was arrested and charged with a number of offences under the Act. On the same day, the Joint Counter Terrorism Team (JCTT) executed search warrants at properties in Sydney, including Mr Alqudsi's residence. The JCTT is a multi-agency taskforce whose members include the Australian Federal Police (AFP), NSW Police Force (NSWPF), NSW Crime Commission (NSWCC) and the Australian Security Intelligence Organisation (ASIO). The investigation by the JCTT Sydney Office into the activities of Australians preparing for incursions into the Syrian Arab Republic for the purpose of engaging in hostile activities is known as Operation Rathlin.

Items seized during the execution of search warrants

1. Among items seized by the JCTT were mobile phones, including one belonging to Mr Casey's wife, on which photographs were saved of Mr Biber, Mr Temel and Mr Casey in locations around Raqqa, Syria, wearing military-style fatigues. One of these photographs was that referred to above of the nine men with assault weapons around the utility vehicle. Several photographs featured Mr Casey holding firearms.
2. During the execution of the search warrants on Mr Alqudsi's home, a substantial quantity of physical and electronic anti-Assad material and propaganda was located.

Mr Biber's involuntary return to Australia

1. In February 2014, Mr Biber's wife gave birth to their child. Around that time, Mr Biber was arrested by authorities in Turkey and returned to Australia involuntarily. He arrived back in Australia on 9 February 2014.

Mr Alqudsi's conviction

1. On 12 July 2016, Mr Alqudsi was convicted of seven counts of performing services to support foreign hostile activities contrary to s 7(1)(e) of the Act.

Mr Biber's post-return conduct and expressions of ideology

1. On 13 August 2016, Mr Biber told his cousin, Emir Biber, and two friends, Cem Terkidag, and Ismet Selcuk, via WhatsApp messaging that the Free Syrian Army (FSA) and JAN were responsible for killing Mr Temel and Mr Casey as well as raping their wives.
2. Between March 2015 and November 2016, Mr Biber expressed his views on topics relating to terrorism and Islam through various media platforms. He received from Emir Biber a hyperlink to an uncensored video of the beheading of a Canadian businessman by a terrorist organisation in the Philippines on 25 April 2016. Mr Biber responded to the video: "lol theyr amateur beheaders". Mr Biber told Mr Tekridag of a conversation he had had with another male about "Hijrah" which, as referred to above, is movement of Muslims from a land of non-believers to a land of Islam. Mr Biber told Mr Tekridag that he emphasised to the male that Hijrah cannot be done alone and must be "coupled". However, the male was not convinced. Mr Biber confirmed that he supported "d", which was a reference to "dawla", which is a shortened version of ad-Dawlah al-Islamiyya, one of the Arabic names for the organisation also known as ISIL (Islamic State in Iraq and the Levant), ISIS (Islamic State of Iraq and al-Sham), or simply Islamic State.
3. On another occasion during this period Mr Biber discussed with another male a video of "spies" being killed. Mr Biber said "when you are not working you realise how shit this place is ... we work to forget about how shit our place is in this country".
4. Between January 2016 and September 2016, Mr Biber accessed various items and websites on the internet with Islamist content. On 15 February 2016 he searched "dawlatul islam" on Google. On 7 February 2016 Mr Biber accessed posts titled "Multaqa Ahl al-Hadith" and "14 Evidences: What makes You a Kafir". (A "kafir" is a reference to a non-believer in Islam. The post described that the killing of a kafir is permitted, however a person cannot just be deemed a kafir if they appear to be one). On the same day Mr Biber accessed a post entitled "Judging by what is Apparent: A trait of the takfeeri?" which said that a person can be deemed a kafir if "apparent".
5. On 20 February 2016, Mr Biber accessed an article online entitled, "The world Includes Only Two Camps - That Of ISIS And That of Its Enemies." On the same day Mr Biber accessed a "liveleak" article titled "New Islamic State Video: The story of Abu Khaled Al-Cambodi from Australia".
6. On 10 June 2016 Mr Biber accessed an image of an Islamic State representative with a microphone, armed Islamic State fighters and four prisoners in cages. On the same day he also accessed an image of armed Islamic State fighters standing over two prisoners. On 11 June 2016 he accessed the image of an incomplete Islamic text entitled, "The life enjoyed by martyrs". On 12 June 2016 he accessed an image of armed Islamic State fighters with two prisoners. On 17 June 2016 he accessed an image of Islamic State fighters in the process of beheading prisoners, as well as an image of three such fighters standing over three prisoners with their heads removed and placed on their back. One figure in the photograph was holding a head in his hand. On 13 September 2016 Mr Biber accessed an article published by the Sydney Morning Herald in January 2016 with the headline, "Syria returnee Mehmet Biber warns of home grown attacks". Also on 13 September 2016 Mr Biber accessed a video containing a compilation of images from overt police action showing persons arrested in Australia for terrorism offences with "nasheed" (Islamic music) playing in the background.

Mr Biber's arrest on 3 November 2016

1. On 3 November 2016 Mr Biber was arrested and charged with the offence to which he has pleaded guilty. He was provided with an opportunity to participate in an interview with investigating officers, which he declined, as he was entitled to do, having regard to the right to silence which is an aspect of the privilege against self-incrimination.

The execution of a search warrant on 3 November 2016

1. At the same time as his arrest, a search warrant was executed on Mr Biber's home which led to the seizure of a number of items, including a Blackberry mobile phone which was identified as belonging to him.

Documents found on Mr Biber's phone

1. There was a document on Mr Biber's phone downloaded on 26 March 2016, entitled "From the eyes of a muhaajir", from the blog written by Jake Bilardi. It was agreed that Mr Bilardi was a Melbourne teenager who travelled to Syria to engage in violent jihad with Islamic State and who was reported to have died as a suicide bomber. There was also an image on Mr Biber's phone of a person, half-buried, following a public stoning. The person's body and the surrounding stones were covered in blood.

Messages sent to and from Mr Biber's phone through various messaging apps and platforms

1. Messages, including the following, were sent to and from Mr Biber's telephone using various messaging apps and platforms. On 1 May 2016 a WhatsApp chat group contained a comment made by Mr Biber: "jstin syria alone over 500k killed and 50% of the population displaced if my calculations are correct thats like a 9/11 once every week and this is the result". Mr Biber then proceeded to send seven graphic images of dead children under which he commented: "and then and then they ask why radicalization and why so much hate 9/11 caused an invasion of a whole nation and they ask why these attacks on the west".

Additional findings based on the evidence at the sentence hearing

The evidence at the sentence hearing

1. Mr Biber gave evidence and was extensively cross-examined. An affidavit of Guven Biber, the offender's father, was read at the sentence hearing. He was not cross-examined. The report of Dr Katie Seidler, psychologist, was relied on by the offender. She was cross-examined. There was also a report of a psychologist, Ms Tungandame, who was not cross-examined. The offender also relied on character references which I have taken into account but accorded limited weight as the authors did not give evidence. Two reports of Dr Rodger Shanahan, who was not cross-examined, were tendered on behalf of Mr Biber. These reports summarise the history of the Syrian civil war and form the basis of my findings about the conflict. Mr Davis, the offender's solicitor, also swore an affidavit which annexed press reports about the conflict in Syria. Further documents were also tendered by the Crown.

Mr Biber's evidence

1. I accept part, but not all, of Mr Biber's evidence. His evidence before me was largely given in a straightforward manner, although he was, at times, argumentative. He was also, in some respects, defensive and anxious to point out the atrocities perpetrated by the Assad Government as well as the fact that his own acts aligned with Australian Government policy at the time. He described the "noble cause" for which he had gone to Syria as follows: "[To] stop the [Assad] government from doing what they continue to do today and what the entire global community condemns them from doing, just killing innocent people, chemical bombing them. Five hundred thousand, plus civilians killed. This is the people that America even wants to kill. They've sent bombs at them, you know like it's not just - it's not just me."
2. I am satisfied that Mr Biber's principal intention when he entered Syria was to engage in armed hostilities against Assad's Government. However, I accept that he also envisaged being able to help in other non-violent ways, if the situation presented itself.
3. My principal reservation about Mr Biber's credibility arises from the disparity between his plea of guilty and his oral evidence on the one hand and his statements to Dr Seidler on the other. I am satisfied that his plea was properly entered and that it represented a voluntary admission of his guilt of the offence charged. However, he is recorded by Dr Seidler as saying that he did not intend to fight in Syria and just wanted to find opportunities to help the people there. Although he confirmed in his evidence in chief that he told the truth to Dr Seidler, I do not accept that he did so. Where there is a discrepancy between what he told Dr Seidler and what he said in evidence, I accept the latter. This discrepancy substantially affects the weight to be given to Dr Seidler's report.

The civil war in Syria

1. The civil war began in Syria in about April 2011. The early armed opposition to President Assad came from groups of army deserters and locals with access to small arms. AAS, a largely Syrian resistance group, wanted to replace Mr Assad with Islamic rule. According to Dr Shanahan, AAS was known for advocating "a more collaborative approach that included a greater role for local [as distinct from foreign] fighters." In August 2011 the FSA formed. JAN was formed in Iraq in mid-to-late 2011. Its representative was sent to Syria to establish a branch of JAN there to overthrow President Assad. There were many other groups, including the Syrian Islamic Liberation Front and the Syrian Islamic Front, both of which were formed in 2012. Dr Shanahan described the armed opposition to the Assad Government as "complex and fractured".

Mr Biber's knowledge of, and intentions regarding, the Syrian civil war

1. Mr Biber's desire to go to Syria arose from the news coverage of the Syrian civil war and in particular "images of men, women and children indiscriminately being killed, tortured, videos, pictures, innocent protesters being shot at by Bashar al-Assad's army". Mr Biber had a family connection with Syria as his great-grandmother came from Lataki in North West Syria, near the border with Turkey. He was particularly affected by images of women and children being pulled out of the rubble when his wife became pregnant in about April or May 2013.
2. Mr Temel, Mr Biber's best friend from early childhood, whom he regarded as a brother, was also concerned about the war in Syria. They often discussed the war between themselves. They both took part in fundraising efforts to help those in Syria. Mr Biber thought of doing aid work in Syria but his father dissuaded him, pointing out that he had no useful skills to offer.
3. In 2013 Mr Biber was working as a courier. He earned very little. He and his wife (whom he had married in 2011) first lived with family. In about March 2013 they moved out to their own place where they lived until Mr Biber left for Syria. Before his departure for Syria Mr Biber spent a lot of time reading the newsfeeds and watching Youtube videos of what was happening in Syria. As Mr Biber had so little money, Mr Temel offered to pay for his air ticket to Syria. Mr Biber admitted that they agreed that they both wanted to go to Syria to "help" and that included, from the outset, to fight against the Government of Syria.
4. Mr Biber revealed his intention to go to Syria to his wife, who "wasn't happy with it" but did not stop him. He lied to his parents and told them that he was going to Turkey to study and would do some aid work on the side. Guven Biber came to suspect that his son was intending to go to Syria to fight and told him that he would do all he could to prevent him from going. In mid-June 2013 he alerted NSW Police to the possibility that his son would go to Syria to fight. He was referred to the AFP. However, the AFP, through its 24-hour hotline, informed him that, as his son was 20, the AFP had no powers to stop him from travelling.
5. Mr Biber knew from speaking with Mr Temel that they would be fighting Assad's army in Syria. Although Mr Biber did not know the details of the Australian law he would be breaking by going to Syria to fight, he knew that it was illegal but he did not care.
6. After he left Australia but before he arrived in Syria, Mr Biber telephoned his parents to tell them that he was going to Turkey. They were terrified that he was heading straight to Syria. The following morning Mr Biber's father and uncle went to the Sydney office of the Department of Foreign Affairs to report their concerns. They were referred back to the AFP. In despair, the two men went to the Turkish Consulate in Sydney to try to prevent Mr Biber from disembarking in Turkey. Their concern was noted by the consulate. Guven Biber's evidence was that, on each of the four occasions on which he told the authorities of his fears that his son would travel to Syria, he felt that he was betraying his son. However, he felt compelled to report the matter as he "wanted to save him from being killed or ending up in serious trouble".

Mr Biber's time in Syria

1. Before his arrival in Syria, Mr Biber had no understanding of any of the groups fighting Assad and had not heard of AAS. He came to regard the locals who fought with AAS as "relaxed in their ideology" and not particularly religious. According to Mr Biber they were "just guys who wanted to replace Assad and put another guy there".
2. He described AAS as "very protective" of the Australians and said that AAS did not want them to "go through mines". AAS arranged for the Australians to live in a guest house in Talbajr, a rural town removed from the fighting. The Australians were very wealthy compared with the local Syrian people as they had a relatively substantial amount of Western currency (the figure of "five grand" was mentioned). On a couple of occasions, AAS took the Australians, including Mr Biber, to a rubbish tip where they shot at cans. The rest of the time the group, which included Mr Biber, did "literally nothing" and "played soccer with a bunch of kids". Mr Biber explained: ". . . there might not be fighting for months and that's let alone them [AAS] not wanting us to go in the first place, we [the Australians] are like on the last priority list of people that they would take to any of those battles and they knew that we had no training and all that stuff, we were very low on the food chain."

The photograph of the nine men, including Mr Biber, carrying assault weapons

1. Mr Biber's evidence about the photograph of the nine men was, in effect, that they had all purchased black outfits, as well as military fatigues because these were the best quality clothes available in Syria. He said that they did not own the weapons that they were holding but that AAS had lent them the weapons so that they could pose for the photograph. I accept Mr Biber's evidence as to how the photograph had come to be taken, which was as follows: "Baryalei said let's take a photo and I said all right, everyone jumped to it, jumped on the back of the car, he said cover your faces, so okay covered our faces and a couple of the boys grabbed guns so I grabbed one off the guard as well and I said give me your vest, it'll look cooler and then we took the photo and it was sent to [Alqudsi] . . . and [we] gave the guns back and gave the vest back and that was that, we didn't all jump in the car and drive off to a front line and start fighting."
2. As Mr Biber said, "you know these days my generation they just take a photo of everything they do". He later explained that it was Mr Alqudsi who wanted a photograph of the Australians he had sent to Syria to fight. Mr Biber said that they dressed up in black because they "thought it looked cool". Their faces were masked because "Baryalei said to cover up" because "he was sending [the photograph] to Australia". Mr Biber was quick to point out that he had grabbed a bullet-proof vest from the AAS guards but the other Australians were not wearing vests because they did not have them as they were not fighting.
3. Mr Biber confirmed that he "never went near the front lines". That Mr Biber did not have his own weapons and was not involved in fighting is consistent with there being no evidence that Mr Baryalei reported any battles to Mr Alqudsi while Mr Biber was in Syria. Nonetheless it is difficult to accept Mr Biber's evidence that the group of Australians with which Mr Biber was associated, in effect, did nothing and saw nothing from 4 July 2013 until he left Syria in October 2013. As referred to above, on 9 July 2013, Mr Alqudsi reported that Mr Musleh returned to Australia "after he saw what he saw" and was "crying over the phone" after his return. I infer that the group of Australians was proximate to matters that disturbed them, including the sights of those injured in the civil war.
4. It is not clear when the group moved to join Islamic State. Mr Baryalei announced to Mr Alqudsi on 8 August 2013 that he intended to pledge his allegiance to Islamic State within the following two or three days and that he would take "everyone with [him]" (Agreed Fact, [25]). According to Mr Biber, Mr Baryalei was frustrated by AAS's protective attitude towards the Australians as he "wanted to die" as his "goal" was "to fight for martyrdom".
5. When Mr Biber was asked at the sentence hearing about his dream of martyrdom and the three virgins, he said that he had actually had that dream but that it was not what he wanted. I infer that, whether or not Mr Biber actually had the dream or not, he was anxious to fit in with the group of Australians in Syria, at least until October 2013 when he left for Turkey. He had seen Mr Baryalei's reaction to Mr Musleh's departure shortly after their arrival and did not want to be regarded as a "kid" or "scorned" by the group, as Mr Musleh was.

Mr Biber's decision to leave Syria

1. After some time in Syria, Mr Biber started to have doubts about why he was there. He was not doing anything useful and felt that AAS treated the Australians "like kids pretty much, like babysitting us". In his evidence in chief Mr Biber mentioned that Mr Baryalei had taken the passports from the Australians "for security reasons" and said that he told Mr Baryalei that his wife was pregnant and that he wanted to meet her in Turkey so that he could be with her when she gave birth. In so far as Mr Biber suggested that it was necessary for him to come up with some acceptable reason to get his passport back from Mr Baryalei, I do not accept his evidence. Further, it was an agreed fact that Mr Biber told Mr Baryalei and Mr Alqudsi that he planned to bring his wife to Syria (not Turkey). As it happened, as soon as he asked for his passport, Mr Baryalei gave it to him.
2. Mr Biber could not recall how long he spent in Syria but he estimated that it was about three months. He gave several reasons for wanting to leave Syria to go to Turkey. First, he was bored because he was in a rural area not helping anyone; secondly, he felt bad about the grief he was causing his family and particularly his wife; and thirdly, he was worried that if he stayed much longer in Syria he would be killed because he knew that Mr Baryalei wanted to join a group that would use the Australians to fight.
3. There was also a fourth reason. Mr Biber needed to go to Turkey to meet an Australian compensation lawyer from Cabramatta to arrange the paperwork for the payment to Mr Biber of $42,000. This was the amount (less costs) which Mr Biber was to receive as compensation for injuries he had sustained in a motor vehicle accident in Fairfield in 2012.

Mr Biber's time in Turkey

1. On his return to Turkey in about October 2013 Mr Biber went to Antakya, in southern Turkey, where he had family. When Mr Biber's aunt and cousin visited from Australia, he met them in Istanbul.
2. Mr Biber's wife arrived in Turkey about a month later by which time he had met the lawyer and rented a house in Antakya. At about this time, Mr Biber learned that the other Australians, Mr Baryalei, Mr Casey and Mr Temel, had joined Islamic State. He soon heard that Mr Casey and subsequently Mr Temel had been killed. His parents, who also travelled to Turkey, convinced him to return to Australia. At about this time, Mr Biber and his wife (who was still pregnant) got food poisoning. Mr Biber's father took them to hospital. While they were there, an immigration officer asked for Mr Biber's identification papers which revealed that his visa to Turkey had expired. Mr Biber was detained in an immigration centre to be deported to Australia. He considered challenging the decision and applying for Turkish citizenship but decided that it was better to be deported so that the Turkish Government would have to pay for his ticket home.
3. Mr Biber returned to Australia on 9 February 2014 following his deportation from Turkey. His daughter was born in Turkey in February 2014. I infer that he was not present for the birth, either because he was in the immigration centre in Turkey or because he had already been deported.

Mr Biber's return to Australia

1. On his return Mr Biber and his wife and child went to live with his parents in Merrylands. Mr Biber became depressed as a result of what he had seen in Syria and found it hard to adjust to life back in Australia. Although he had been distant from the fighting he had visited hospitals and seen people who were badly injured. He did not work at all for the first six months after his return and was living with his parents. However, he said that what enabled him to emerge from the depression was his family and, in particular, his daughter. After about six months, he began to work, as a technician and delivering furniture. He rejoined his old soccer club and was "back [to] normal life". I accept Guven Biber's evidence that: "Mehmet returned from Syria subdued not inspired by the experience. He wanted to get out of there and he knows he was lucky to do so."
2. In September 2015 Mr Biber's mother sustained work-related injuries affecting her hands. Following that incident, the offender helped his mother with physical tasks, for which he received a carer's pension.

Mr Biber's political views

1. Mr Biber explained, in his evidence before me, that the images on his phone, which are recorded in the Agreed Facts, reflected his interest in Syria and all the groups, including Islamic State, which opposed Assad. However, when asked about his internet research after his return to Australia, he said: "And to be honest there were so many things that after I while that I just got bored of it, like it's the same things over and over again. A battle here, a new battle there, another battle here or this happened, this happened there. Like you just, you get over it after a while."
2. Mr Biber gave evidence that some months before his arrest he lost sympathy for Islamic State. I do not accept this evidence which I regard as deliberately self-serving and reflective of his perception of what would advance his interests in the sentence hearing. Mr Biber appeared to be conscious while giving evidence that he did not want to be seen to be supporting Islamic State for any reason other than the emotional one of allegiance to Mr Temel. Although he said he would support anyone who was fighting the Assad Government, he insisted that he did not support the ideology of Islamic State. However, I do accept that his response to various anti-Assad groups was driven by emotion. For example, he blamed FSA for killing Mr Temel and therefore disparaged them online. Many of his entries in chat groups were, in my view, unthinking responses to the contributions of others.
3. I note that none of the sites that Mr Biber accessed was illegal. There is no suggestion that he engaged in any illegal acts following his return to Australia. I do not infer from his access to particular internet sites or his membership of particular chat groups that Mr Biber posed a risk to the public generally or any particular individuals in Australia from the time of his return from Turkey in February 2014 to his arrest in November 2016.
4. Following his arrest on 3 November 2016, Mr Biber was taken into custody on remand. He had never been in prison before. He spent about two months in segregation at the Metropolitan Remand and Reception Centre at Silverwater before being transferred to the High Risk Management Correctional Centre at Goulburn (also known as SuperMax). The conditions of his incarceration are harsh. He receives visitors no more frequently than fortnightly. He is able to make phone contact only every few days. He continues to be emotionally supported by his parents, his sister and his wife. He misses them and also his daughter, who has been led to believe that he is away "working". He spends his time exercising, reading or watching television. He has not been able to undertake courses in gaol while on remand.
5. Mr Biber's response to the question whether he regretted committing the offence was (tr. 29-30): "The actual intentions I had - I don't regret my intentions that I had for the good of the civilian that I wanted to help, that was the intentions I had. I do definitely regret the path I took and the actions, the decisions that I made."

Dr Seidler's evidence

1. Dr Seidler is a psychologist who interviewed Mr Biber for an hour on 20 March 2018 and subsequently, via Audio-Visual Link, for over two hours on 21 March 2018. She also performed a psychometric assessment. While I have taken her report into account, I have found it to be of limited assistance because of the disparities between the evidence in the sentence hearing and the narrative recorded in her report which cannot be reconciled by Mr Biber's oral evidence that he told her the truth.
2. I accept that Dr Seidler recorded the narrative Mr Biber gave her in his report but I do not regard the narrative as particularly reliable. For example, she recorded that he said he never felt particularly disconnected or unwanted in Australia. However, this would appear to be inconsistent with his complaint in a chat group, referred to above, about "how shit this place [Australia] is [and] . . . how shit our [Muslims] place is in this country". The description recorded in Dr Seidler's report of Mr Biber's schooling makes no reference to the emphasis placed by the school on Sunni fundamentalism of which Guven Biber gave evidence (and which is referred to below). Mr Biber's statement to Dr Seidler that he wanted to help the people of Syria by joining a "very moderate group of rebels wanting to get rid of the leader (President Assad) and they wanted someone who wasn't an oppressor" implies that he made a deliberate choice as to which group to join. The evidence revealed that he had no idea who AAS was until he arrived and joined them merely because Mr Baryalei was already associated with AAS, which happened to control the area where the group to which Mr Biber belonged crossed into Syria.
3. As referred to above, the weight to be attributed to Dr Seidler's report is also affected by the false premise on which her opinions were based: that, although Mr Biber was with people who intended to fight, his purpose in going to Syria was to engage in humanitarian activities. Dr Seidler also noted the following which is consistent with Mr Biber's self-justification: "However, Mr Biber reiterated that he had no malintent in his actions and that at the time, in 2013, people who went overseas to help others were considered inspirational."
4. I do not accept Dr Seidler's opinion that "Mr Biber demonstrated insight into why his actions in going overseas to Syria are considered illegal and he also recognised the national interest in this, including making a comment that having someone come back from a conflict zone into Australia may pose a risk to this country." I did not detect any particular insight in Mr Biber about the illegality of his actions or their effect on Australia's national interest.
5. Mr Biber did, however, demonstrate some insight into the anguish he had caused his wife and his parents. However, in my view, the only real insight he appeared to display was how his life had been adversely affected by his arrest and incarceration in that he was unable to see his wife or daughter or progress his future. Although he presented as articulate, his decision-making and his rationalisation of his conduct was, largely, immature, selfish and self-justifying.
6. I do not accept that Dr Seidler had relevant expertise, except as a psychologist. Her education into "terrorism and radicalism" was limited to an online course. It was not shown that this course, or her role as a research fellow in the Security and Terrorism Unit at Charles Sturt University had any particular relevance to Mr Biber. Dr Seidler purported to conduct a risk assessment for violence and terrorist-related offences. She acknowledged that her assessment was not based on any well-established instrument. I do not regard her assessment as being of any real assistance in the present case. I note that Mr Biber has not been charged with any terrorist-related offence.
7. Dr Seidler also opined that Mr Biber did not meet the criteria for Post-Traumatic Stress Disorder (PTSD) but might have in the past. I note Mr Biber's evidence that he never went anywhere near the front line. Dr Seidler noted that the onset of PTSD symptoms had coincided with viewing videos and images on the internet of violent acts against men, women and children in the Syrian civil war.

Crimes (Foreign Incursions and Recruitment) Act

1. The Act was passed in 1978 by the Commonwealth Parliament in response to a series of resolutions of the United Nations General Assembly which called on nation States to stop foreign fighters and those who provide assistance to them. The legislation was originally concerned with preventing anti-government forces, but was amended in 1987 to criminalise foreign fighters and assistance given to them, irrespective of the group with which they intended to associate. These resolutions expressed the collective intention of nation States to reserve to themselves the right to wage war (through their own armed forces), which, since 1945, had been subject to the Charter of the United Nations and resolutions made by the Security Council in accordance with it.
2. Section 6 of the Act, which created the offence for which Mr Biber stands to be sentenced, made it an offence to enter a foreign State for the purpose of engaging in armed hostilities. Section 7 of the Act made it an offence to perform services for someone with the intention of that person entering a foreign State for that purpose. The purpose of ss 6 and 7 of the Act is to deter and prevent foreign fighters from engaging in armed hostilities in foreign States and to punish those who go, as well as those who assist them.
3. The legislative history of s 6, as referred to above, is important to an identification of legislative purpose in the context of the present case. Section 6(3)(aa) was inserted into the Act by the Crimes Legislation Amendment Act 1987 (Cth) (the 1987 Amending Act). Its effect was to include, in the definition of engaging in a hostile activity (for the purposes of offences against s 6(1)), doing an act (relevantly, entering a foreign State) with the intention of achieving the objective of engaging in armed hostilities in the foreign State.
4. In the Second Reading Speech (Commonwealth of Australia Parliamentary Debates, Senate (Hansard) 5 November 1987), at p.1756, Senator Tate explained the purpose of the amendments in the following terms: "The underlying purpose of the Crimes (Foreign Incursions and Recruitment) Act 1978 is to prevent persons from Australia becoming involved in hostile activity in overseas countries. The purpose of the amendments is to remedy a number of deficiencies in the Act. One such deficiency is that mercenary acts as such are not proscribed unless they involve acts done for specific purposes, those purposes generally relating to acts directed against the government of a foreign country. . . . In addition, two new offences have been created - prohibiting persons from Australia from engaging in armed hostilities outside Australia and prohibiting the use of a vessel or aircraft in preparations for an incursion into an overseas country. . . ."
5. I understand the reference to "mercenary acts as such" in the Second Reading Speech to the 1987 Amending Act to be a reference to s 6(3)(aa), which proscribes "engaging in hostilities in the foreign State". The 1987 Amending Act also removed the reference to "foreign country" and substituted "foreign State" and redefined "government" to mean the authority exercising effective control, rather than, as previously, the government that Australia had recognised as the lawful government.
6. This legislative history shows, in my view, that the intention of the Act, as amended in 1987 was, not only to criminalise entry into a foreign State for the purposes of engaging in armed hostilities, but also to make irrelevant any judgment about the merits of any armed conflict in a foreign State. In other words, the amendments made by the 1987 Amending Act made clear, in my view, that the criminality of such conduct was not ameliorated if the putative foreign fighter was fighting against a regime that was regarded, for example, as inimical to Australia's foreign interests or in breach of international law by reason of its conduct towards those living within its borders: R v Alqudsi [2016] NSWSC 1227 at [6] and [92].
7. Wars are typically fought by young men who, it may be assumed, believe themselves to be engaged in a "noble cause", whichever side they are on. History shows the susceptibility of young men to the idea that they will become heroes and that their lives will matter if they go and fight in a war, whether in a nation State's military force or a rebel group, and that accompanying other men into battle is the ultimate act of loyalty, friendship and sacrifice for which they will be forever remembered. Before the enactment of the Act, participating in a foreign war other than as part of the military forces of a nation State was not illegal under Australian law. Indeed, participation in certain historical conflicts was, at times, regarded as laudable where the foreign government sought to be overthrown was regarded as tyrannical.
8. The Act criminalised this conduct. It made entry into a foreign State with the intention of engaging in armed hostilities, other than as part of a recognised national military force, a criminal offence, the seriousness of which is indicated by the maximum penalty of 20 years imprisonment.
9. In R v Mohammed [2016] VSC 581, Lasry J said of the provisions, which included ss 6 and 7 of the Act: [4] . . . [T]he clear purpose of the provisions . . . was to ensure that Australia discharged its international obligation to make criminal the activities of . . . [those] who proposed to engage in hostile activities in a foreign state and/or assist foreign fighters to do so. That purpose in itself demonstrates the seriousness of [the] conduct. Like contemporary terrorism offences, the . . . Act made criminal not only the specific act of engaging in hostile activities in a foreign state but, separately, acts which are performed in preparation with that intention."
10. The difference between the maximum penalty for an offence under s 6 of the Act (20 years) and an offence under s 7 (10 years) indicates that Parliament regards offences against s 6 as, generally, more serious than offences under s 7. Parliament has, by providing for a maximum penalty of 20 years for an offence under s 6 indicated the seriousness with which it regards conduct falling within that section. The maximum penalty is to be reserved for the worst category of cases: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 478. I note that an offence under s 6(1)(a) (entering a foreign State with intent to engage in a hostile activity) carries the same maximum penalty as an offence under s 6(1)(b) (actually engaging in a hostile activity).
11. Both the Crown and Mr Anderson, who appeared on behalf of the offender, accepted that the parity principle did not apply between Mr Alqudsi and Mr Biber. They also accepted that the sentences imposed for offences against s 7 of the Act did not provide any particular guidance for sentencing under s 6. Accordingly, while I have noted the sentences imposed by other courts for offences under the Act, I accept that these do not bear in any material way on the sentence which I am to impose, which I am informed by the Crown is the first for this offence.

Matters relevant to sentencing

1. In sentencing Mr Biber, I am obliged to impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act 1914 (Cth). It requires all relevant factors, including the seriousness of the offence and Mr Biber's comparative youth and immaturity, to be taken into account in determining the sentence to be imposed.

The nature and circumstances of the offence

1. In assessing the relative seriousness of an offence under s 6 of the Act, the nature and circumstances of the entry and the offender's intention (set out above) are significant factors. The Agreed Facts indicate that the basis of the plea is that the offender entered Syria with the intention of engaging in armed hostilities there. Although he received assistance from Mr Alqudsi, he made his own travel arrangements and was not only a willing, but also a determined, volunteer. Mr Biber accepted in evidence that he assured Mr Alqudsi that he was "committed" and that he knew that Mr Alqudsi understood that assurance to mean that he was committed to engage in armed hostilities when he arrived in Syria. Neither his wife's wishes nor situation; his father's prohibition; his inability to fund the trip from his own resources; nor his knowledge that his conduct was illegal under Australian law could deter him from going to Syria to fight.
2. Although his planning did not involve research into the groups which were fighting Assad or matters of that nature, he appreciated that he would be joining Mr Baryalei, who was already on the ground in Syria. It was not, in my view, an impulsive decision. His father had suspected that his son wished to go to Syria for over a fortnight before he actually left. Further, Mr Biber had to apply for a passport and book his air tickets, which involved some degree of planning, as well as subterfuge from his parents who were anxious to prevent him from going.
3. The offence was complete when Mr Biber crossed the border from Turkey to Syria on the evening of 4 July 2013. I note that he was not charged with an offence against s 6(1)(b) of the Act, which is the offence of engaging in a hostile activity in a foreign State. On this basis what he did after he entered does not affect the nature and circumstances of the offence in any significant way. The aftermath of his entry, however, may affect other matters relevant to sentencing, such as subjective matters and prospects of rehabilitation, which are considered below. I note for completeness that Mr Biber has not been charged with being associated with any terrorist organisation.
4. Although, as noted, the offence of entering a foreign State with the intention of engaging in armed hostilities carries the same maximum penalty as engaging in armed hostilities, this is not to say that the seriousness of Mr Biber's conduct ought be assessed as if he actually engaged in armed hostilities. Offences against s 6 cover a very wide range of prohibited conduct in a foreign State, of which engaging in armed hostilities is but one. Other prohibited conduct set out in s 6(3), whether or not actually achieved, includes: overthrowing the Government of the foreign State by force or violence; causing the public of the foreign State to be in fear of death or personal injury by force or violence; causing the death or bodily injury of the head of state of the foreign State; and unlawfully destroying real or personal property of the government of the foreign State.
5. The circumstances which may give rise to a conviction for an offence under s 6 of the Act are so various that it is unhelpful, if not impossible, to generalise about the conduct covered by the section, not least because it covers entry into a foreign State with intention, as well as actually doing the physical acts in a foreign State. Like manslaughter, the offence has a protean character: R v Forbes [2005] NSWCCA 377 at [133]-[134] (Spigelman CJ); R v Blacklidge (Unreported, Court of Criminal Appeal (Gleeson CJ), 12 December 1995) pp 2-3. Its objective gravity may vary from an individual crossing a national border with the intention of destroying some item of government property of little or no strategic value, to membership of a mercenary group conducting a lengthy violent campaign to overthrow the government of a foreign State and terrorise those within its borders. Matters of fact and degree can arise both within s 6(1)(a) and (b) and within the objectives referred to in s 6(3).
6. I regard Mr Biber's conduct in entering Syria for the purposes of engaging in armed hostilities, but not actually engaging in armed hostilities, and returning to Turkey of his own volition as well below the mid-range of seriousness for this offence.

Any injury, loss or damage resulting from the offence

1. It was not suggested by the Crown that any injury, loss or damage resulted from the offence within the meaning of s 16A(2)(e) of the Crimes Act.

The character, antecedents, age, means and physical or mental condition of the offender

1. Mr Biber was born in Australia. He grew up in a stable family and enjoyed a happy childhood which was provided to him by loving parents. His mother had some depressive episodes but this does not appear to have affected Mr Biber adversely.
2. Mr Biber's father, Guven, was born in Adana, Turkey, and came to Australia as a boy with his parents in 1974. He became an Australian citizen in 1994. Mr Biber's grandparents came from the area around the Syrian/ Turkish border. Guven Biber's family were Alawites. Although Guven did not support Assad, he felt that all Alawites in Australia were suspected of doing so. Guven believes that his son's desire to be seen to oppose Assad was an attempt to make up for the religious and cultural associations of his family.
3. Guven Biber's unchallenged evidence about his son's schooling was: "Mehmet's mother and I made a decision to not send our children to religious schools. We were very happy that Australian public schools were totally secular and gladly sent Mehmet to one. We were misinformed. Mehmet's high school was Parramatta High. We came to learn that it was a religious hothouse. Visiting mullahs and prayer groups and school employed emirs were a constant feature of education there. All of them it seemed legitimising a strain of Sunni fundamentalism. I guess the teachers and headmasters thought they were being culturally sensitive in encouraging religion coming into the school. The exact opposite was true. It became clear too late to me that Mehmet was being made to be embarrassed of his Alawite heritage - a situation which worsened when Assad began to massacre civilians."
4. I have already referred to Dr Seidler's opinion that Mr Biber no longer suffers from PTSD. Although I note that he has suffered depression in the past I accept his evidence that, six months after his return to Australia, he was able to engage in what he regarded as his normal life.
5. As referred to above, when at liberty, Mr Biber performed various jobs, including courier, technician and furniture removalist before his departure from Syria and after his return. He will be able to use these skills and further educate himself if he so wishes, on his release to support himself and his family.

Other subjective matters

1. As the findings set out above reveal, Mr Biber was motivated to go to Syria to fight, in part because he believed that the Assad government ought be overthrown, but also because Mr Temel was going and they were best friends. He knew that he was committing a crime and that his parents would be horrified when they found out. He had no training and no relevant skills. He had been influenced by images he had seen on the internet and believed that if he could help to overthrow Assad, he would be part of a "noble cause".
2. That he was prepared to leave his wife, who was then pregnant, is an indication of his immaturity. His immaturity showed itself in other ways, including his preparedness to dress up and pose for the photograph of the nine men and to borrow a vest and a weapon from an AAS guard to make it look as if he was a real foreign fighter in a group of foreign fighters. When it became clear that the group was going to join Islamic State, his thoughts turned to his family and his compensation pay-out and he returned to the relative safety of Turkey. He lacked the foresight to check the expiry date of his visa which led to his deportation. I infer that this resulted in his being away from his wife when she gave birth to their daughter. Nonetheless, Mr Biber seemed to regard his deportation as fortunate since it meant that he would not have to pay for his air fare back to Australia.
3. I regard Mr Biber's youth and naivety as a mitigating factor. Although he was legally an adult, and the offence involved getting himself from his home in Sydney to the border between Turkey and Syria, intending to engage in hostile activities (which he expected would involve the use of semi-automatic weapons) when he crossed the border, there was, as I have noted, a marked immaturity in his approach.
4. Further, while participation in a "noble cause" may be a much greater incentive than material gain, his criminality was, in my view, considerably less than that of a mercenary.
5. Mr Biber has a very minor criminal history which is not of significance in the present case. He has not spent time in gaol prior to his arrest for the offence for which he is to be sentenced.

The degree to which the offender has shown contrition for the offence and the plea of guilty

1. The offender pleaded guilty to the offence on 9 February 2018. The utilitarian benefit of a plea of guilty is a relevant consideration for sentencing: Xiao v R [2018] NSWCCA 4 at [278] (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ). Although the percentage discount need not be separately expressed (Xiao v R at [280]), I consider it to be desirable to do so in the present case, not only for the sake of transparency, but also to demonstrate to others who have been, or might be, charged with this offence the benefits of an early plea. I propose to allow a 20% discount on the sentence to take account of the utilitarian value of Mr Biber's plea.
2. A plea might also be relevant to sentencing because it might reveal an intention to facilitate the course of justice or contrition. I am not satisfied that Mr Biber's plea demonstrates an intention to facilitate the course of justice although it has had that effect. I am not satisfied that his plea is an indication of contrition. Contrition requires not only a formal admission of guilt (by the making of a plea of guilty) but the acknowledgement of wrongdoing and a degree of repentance. The offender's statements to Dr Seidler provide powerful evidence that, notwithstanding his plea (which I accept to be valid), he nonetheless sought, as recently as a month before the sentence hearing, to portray his intentions and involvement as humanitarian and non-violent.
3. I accept that Mr Biber was motivated to depose the Assad Government. That motivation cannot ameliorate the offending, since it is at the heart of the purpose of the Act to prevent potential foreign fighters entering foreign States for that purpose. However, for reasons already given, his youth made him more susceptible to influences which glorified such motivations and is to be taken into account in his favour as a subjective matter.

The probable effect of the sentence on Mr Biber's family

1. By reason of his incarceration, Mr Biber has not lived with his daughter since she was less than two years old. Although she has visited him in gaol in the past, I understand from the evidence that there have been no recent visits. She is now over four years old. His family has suffered considerable hardship because of his inability to contribute financially and emotionally. His mother's mental health has deteriorated since his arrest and she is without the physical assistance which her son could provide. Mr Biber's father is obliged to support the extended family almost single-handed. I regard the cumulative effect of these matters as exceptional and have taken them into account in the sentence.

Delay by prosecuting authorities

1. Mr Biber returned to Australia on 9 February 2014. By the time of his return, Mr Alqudsi had already been arrested and charged with assisting Mr Biber (and others) to go to Syria to engage in armed hostilities pursuant to s 7 of the Act. The delay of two years and nine months (from 9 February 2014 until 3 November 2016) in charging Mr Biber was not explained, but may have been the result of operational matters. The evidence to establish paragraphs [1]-[33] in the Agreed Facts must have been known to the AFP, and therefore the prosecuting authorities, by the time of Mr Biber's return on 9 February 2014. Most of the facts derived from real-time intercepts of Mr Alqudsi's telephone between June and October 2013. Further material was obtained from execution of search warrants at the time of Mr Alqudsi's arrest.
2. The delay has operated unfairly to Mr Biber, who, when he was not apprehended on his return, was entitled to assume that he was free to resume his normal life in Sydney. His father's unchallenged evidence was that: "For nearly three years [from 9 February 2014 until 3 November 2016] we lived a quiet, normal life together. Since returning home Mehmet gave me no cause for concern."
3. I accept Mr Anderson's submission that delay is relevant to prospects of rehabilitation and specific deterrence, which are considered below.

Specific deterrence and prospects of rehabilitation

1. I do not accept the Crown's submission that Mr Biber's prospects of rehabilitation are slim. Mr Biber lived with his family for almost three years from the date of his return from Turkey to the date of his arrest. There is no evidence that he did anything either to return to Syria or to risk the safety of the Australian community throughout this period. I regard this as a substantial indicator of his prospects of rehabilitation.
2. Although the love and support of his family were not sufficient to dissuade Mr Biber from going to Syria to fight, they were, in the end, sufficient to remove him from the conflict before he engaged in armed hostilities. While he returned to Australia involuntarily, I consider it to be likely that he would have accepted his parents' advice to return to Sydney with his wife and daughter and make his life here.
3. I do not regard Mr Biber as having matured significantly as a result of his experiences in Syria. His comment in 2016 in response to a video of decapitation, "lol theyr amateur beheaders" was puerile. As his counsel put it, it was "a stupid comment". Nonetheless, there is no evidence that any of his internet activity after his return led to any incident. Further, whatever illusions Mr Biber may have had about the consequences of engaging in armed hostilities when he entered Syria, such consequences would have been brought home to him by the deaths of all those Australians with whom he spent time in Syria and, in particular the death of his best friend, Mr Temel. According to Mr Biber's sources, he and Mr Musleh, who left Syria after a few days, were the only members of the group of Australians to survive. I accept that, although Mr Biber intended to fight in Syria, he did not intend to die. Unlike Mr Baryalei, he was not "chasing martyrdom". In these circumstances I do not consider it to be likely that he will, upon his release, return to Syria to fight, even if the civil war is still continuing when that occurs.
4. My impression, when listening to Mr Biber's evidence, was that he appreciated what his father had done for him, in trying to dissuade him from going, in alerting the authorities on four occasions to his son's conduct and in coming to Turkey to bring him home. Further, Mr Biber can be taken to be aware that his father lost his job as a security guard because of his son's conduct and that this has jeopardised the family's financial security.
5. It is difficult to assess prospects of rehabilitation, particularly in a case where I am not satisfied that Mr Biber feels any remorse or contrition for his offending, although he plainly regrets the consequences for himself and his family. In all the circumstances, I consider his prospects of rehabilitation to be reasonable, particularly having regard to the length of his period at liberty following his return; his father's good example and steadfast support; his family's love; his desire to be part of his daughter's life; and his time in custody, which I accept to be very onerous.
6. I have taken into account in the offender's favour that, upon release, he will probably live with his parents again, as well as with his wife and daughter, in a supportive, loving environment. This is also relevant to the ratio of the non-parole period to the total term.

General deterrence

1. General deterrence is an important consideration. The purpose of the Act, including s 6, is to deter and punish foreign fighters. The entry into a foreign State to engage in armed hostilities is to be denounced and deterred. As Lasry J said in the passage set out above, it was necessary for the Commonwealth to enact legislation to criminalise this conduct to discharge Australia's international obligations.

Punishment

1. Punishment is an important purpose of sentencing. The sentence I impose must take this purpose into account.

Sentencing options

1. A sentence of imprisonment may be imposed for this offence. There are other options, both custodial and non-custodial, including those which may be considered if a sentence of imprisonment is appropriate, as to how the sentence is to be served. I have considered all available options, including the conditions that might be imposed on an offender under a sentence or order: s 16A(2). I am satisfied that no sentence other than a sentence of full-time imprisonment is appropriate in all the circumstances of the case: s 17A of the Crimes Act. The seriousness of the offence, as indicated by the maximum penalty and the need for general deterrence and punishment, require that a sentence of imprisonment be imposed to communicate "the censure of society": Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46 at [163] (Kirby J).

The imposition of a non-parole period

1. I am required by s 19AB of the Crimes Act to fix a non-parole period. For Commonwealth offences, there is no statutory or judicially determined "normal" ratio between the non-parole period and the total sentence. Accordingly, my discretion to determine the total sentence, the non-parole period and the parole period is not constrained by any formula or norm. The non-parole period is to be determined by what, in all the circumstances of the case, ought be the minimum period of actual incarceration: Power v The Queen (1974) 131 CLR 623 at 627-629; [1974] HCA 26 and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [36]-[44].

Other matters

1. Mr Biber has been in custody since his arrest on 3 November 2016. Accordingly, the sentence will be expressed to commence on that day: s 16E of the Crimes Act and ss 24(a) and 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
2. I note the undertaking given by Mr Biber's solicitor to explain to the offender the purposes and consequences of fixing the non-parole period: s 16F of the Crimes Act.

Orders

1. Mehmet Biber: 1. You are convicted of the count on the indictment. 2. I sentence you to a term of imprisonment of 4 years and 9 months commencing on 3 November 2016 and expiring on 2 August 2021. 3. I fix a non-parole period of 2 years and 6 months, expiring on 2 May 2019.

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